Law: Criminal Procedure Code, 1898

Section: Ss. 236, 237 & 238-Abetment-

  Criminal Procedure Code (V of 1898), Ss. 236, 237 & 238-Abetment-Not minor offence within meaning of S. 238 . Person charged with substantive offence only-Whether can be convicted of abetment thereof-Penal Code (XL V of 1860), S. 109.   The general rule is that a person cannot be convicted of an offence with which he is not charged. But there are two exceptions to this rule which are provided for in sections 2:7 and 238 of the Criminal Procedure Code, 1898. Section 238 empowers the Court to convict a person of a minor offence if the case falls within the conditions laid down in that section. An attempt to commit an offence is without doubt a minor offence within the scope of sub sections (1) and (2) of section 238 but the abetment of an off;nce is not a minor offence within the meaning and scope of that section. The second exception is laid down in section 2 57 of the Code. This section enables the Court to convict a person of an offence which from the evidence, he is proved to have committed and for which he might have been charged under section 236 of the Code. Therefore, if a person might have been charged for the abetment of an offence under the provisions of section 236 of the Criminal Procedure Code, 1898, then he could be convicted for abetment although he was not charged with it.   Provincial. Government C. P. & Berar v. Gomaji Badri A I R 1944 Nag. 12 ; Khumdn v. Emperor A I R 1931 Oudh 274 ; D obi Prashad v. Emperor A I R 1932 Cal. 455 and Kehr Singh v. Emperor A I R 1920 Lah. 15 ref.   Abetment-Principal offender acquitted-Abettor whether and when can be acquitted.   The offence of abetment is a distinct offence and does not depend upon the actual commission of the crime abetted yet where the principal offender is acquitted and the circum. stances and facts of the case create grave doubts and the Court is not- satisfied that some unknown person had committed the offence in consequence of the abetment, conviction of a person for abetment cannot be upheld. No general rule, however, can be laid down that in no case can an abettor of an offence be convicted, if the principal is acquitted of the substantive offence.…